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Book Review
Patents jurisprudence
REPORT OF THE PEOPLE'S COMMISSION ON PATENT LAWS FOR INDIA: B. K. Keayla; Centre for Study of Global Trade System and Development, A-388, Sarita Vihar, New Delhi-110044. Rs. 150.
WHEN THE economic history of Independent India comes to be written with the vision and passion of the founding fathers of our Constitution, the perversion of our excellent Patents Act 1970 and the subversion of our national interests through the GATT treaties will be condemned as brazen betrayal of people's concerns committing the country to global corporate commands. This humiliating syndrome has been called "GATTastrophe" and Operation Recolonisation. The book under review exposes stage by stage the shameful story of the unfortunate surrender and political cover-up landing the nation in a situation where people's battles for winning back Patent Swaraj, inside Parliament and through campaigns outside, are necessitious.
Patents are monopolies and monopolies are evil unless regulated by law designed to serve social justice, national interests and pragmatic considerations. Patents have come to stay the world over and India inherited a colonial system, which was overthrown by a fine piece of legislation — the Indian Patents Act 1970 — based on the brilliant, balanced Ayyangar Commission Report. Public interest was in the forefront but foreign patent holders also had a fair deal. The Americans held the largest number of patents under the 1970 Act. The philosophy of the Indian legislation is that patents are granted to promote inventions to be worked in this country on a commercial scale without undue delay. Only process patents, not product patents for food, medicine and agro-chemicals. No profit from pain and suffering and no patents for living matter and other vital items of national concern. Public interest mechanisms like compulsory licensing, licences of right and revocation. These and other pro bono provisions made the Indian Act a glory that benefited the people, stimulated native pharmaceuticals and saved the health of the nation from the grab capacity of foreign corporate operators. The author, who has a life long record of study of Indian pharmaceutical jurisprudence and commitment to Indian humanity, has authoritatively stressed, with facts and figures, how our benign law kept prices down vis-à-vis Pakistan, the U.K., and the U.S. et al. It is because of our patent system that the price differential is so favourable for us.
Had not the1970 Act arrested prices of medicines and given incentives for phenomenal pharmaceutical development, India would have been in a crisis instead of being the lowest in relation to glaring differences in product patent regimes. Likewise the availability of new products and medicines from indigenous sources would have been hard had our dependence on imports been the main source. The truth is that the finest hour of pharmaceutical jurisprudence arrived with the 1970 Act but the decline and fall of health for all began with the Uruguay Round of the GATT and the Dunkel Draft text. The right to medical care for the humblest human is integral to the Alma Ata Declaration (1979) in which India, among 134 nations, pledged urgent action and the resolution of the 38th World Health Assembly gave this promise practical shape.
Neverthless, American pressure mounted, Uruguay Round negotiations made September 1986 the beginning of the end of the great days of Indian Patent Law. "GATTastrophe", if one may express the Patent Law tragedy graphically, found the Indian Government a soft state. Indeed the Government was playing hide and seek with Parliament and pretended to be resistant to the retaliatory threat of the U.S. Trade Act (Super 301 and Special 301). This was evasive comedy and contradictory. There was public opinion mounting against the Government's surrender to the Dunkel Draft. Indeed in between the Gujral Departmental Related Parliamentary Standing Committee on Commerce, in its third report (1993-94) was critical of the Government's ambivalence.
Alas, at Marrakesh (1994) without parliamentary approval the Central Executive signed away India's commercial independence. The deed was done; the WTO Treaty was signed — sans serious parliamentary debate. The Constitution Review Committee headed by Justice Venkatachaliah has drawn attention to this basic blemish. Anyway the Marrakesh signature of 1994 obligated India to implement the TRIPS, trade related Intellectual Property Rights (IPR) Agreement. Thus the nationwide opposition to TRIPS became futile and the struggle was to salvage people's rights as much as possible out of the traumatic TRIPS patent system. The Government went ahead with the Patent Amendment Ordinance 1994. The bill to replace the ordinance was opposed but passed in the Lok Sabha where the Government had a majority. However, in the Rajya Sabha, the Government had no majority and so the bill was referred to a Select Committee of the House. Meanwhile political events, consequent on the dissolution of the Lok Sabha in May 1996, led to the lapse of the bill. During the budget session of Parliament in March 1999 a bill was passed varying the provisions of the act of 1970. A subsequent parliamentary committee of both Houses submitted a report and fresh bill as revised was finally passed in May 2002, with 64 amendments. The discussion in Parliament was powerful and voiced on the floor of the House the importance of affordability, accessibility and availability of drugs to all sections of the society.
The passage of the bill is not the last word on the law and the life of the people. Creative criticism cannot be silenced until Patents jurisprudence comes to human terms with social justice. Parliament must speak for "us" not for the U.S. The present People's Commission is an expression of this desideratum. Headed by Mr. I.K. Gujral this eminent collective of intellectuals is a powerful mission capable of informing public opinion and illumining parliamentary cerebration. Look at the composition. Mr. Gujral's great experience, Dr. Yusuf Hamied's specialisation par excellence, Mr. Rajiv Dhavan's superlative juristic expertise and the distinguished participation of Mr. Muchkund Dubey, Mr. Ashok Parthasarathy and Mr. Yash Pal command compelling attention. Even though the Patent (Second Amendment) Act 2002 has been passed into law in May 2002, the plenary power of Parliament is not exhausted and the Supreme Court power to pronounce any provision of the treaty violative of the basic structure of the Constitution may still be exercised. It must be remembered as the Commission reminds us: "TRIPS itself leaves open many matters for future consideration. Secondly, more importantly, treaties evolve and change over time in response to exigent needs. Before 1994, the international patent regime was very different from that which emerged under the aegis of the WTO treaty. A decade is a long time in such matters, India needs to approach the WTO and TRIPS with wide angled lenses so that the long term perspective is as much as they affect India's national interest and the interest of other nations is also not overlooked."
The scope of patentability is a core issue. Article 27 of TRIPS agreement covers not merely an inventive step but capability of industrial application. The Indian Parliament can read down the meaning of "invention" in such a manner that it serves national interest. India is passing through a scenario of transition from process to product patent, which has great relevance to pharma industry. All our ayurvedic wealth, herbal medicines and tribal recipes involve no novelty to an Indian and should not be available for patentisation under the western illusion of glittering packages and trivial tampering, to produce a seeming dilution and claiming the right to a patent. Compulsory licensing system is extremely important to ensure the role of domestic enterprises to provide adequate availability of patented products. India's provision of licensing of right under the 1970 Act helped a great deal. The pharma industry has prices lowest in the world. The Commission has made flexible recommendations in formulating its compulsory licensing system.
The term of patents for 20 years is too long, taking the practical view that products become obsolete sooner. Therefore we must insist on a shorter period suggested by realism. Pricing of patented products is very relevant for a country like India. Therefore prices of patented products need to be regulated to safeguard the interests of the poor. Already 70 per cent of the population cannot reach medicines. Therefore affordable prices should be our slogan, so that the vast masses are not priced out of the market. Other recommendations of the Commission need expert examination.
The Minister of Commerce and Industry has indicated that there will be another bill viz., the Patent (Third Amendment) Bill, which will be introduced before January 1, 2005. This is an occasion when a comprehensive study of the lacunae in the existing system and the necessity for flexibility in various provisions may be considered closely. Indian legislation must serve Indian reality vis-à-vis health resources and access, especially in times of emergencies.
The right to life of a billion-strong Indian humanity — We, the People of India — is the ultimate accountability of our Indian Democratic Republic. People first TRIPS next.
V. R. KRISHNA IYER
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